by Dr. Lance B. Eliot
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Key briefing points about this article:
- Currently, the practice of law is tightly controlled and there is essentially just one tier
- Some argue that we need a second tier consisting of non-lawyers certified to also do the law
- Acrimonious debates covering the benefits versus risks of a two-tiered approach are plentiful
- Coming down the road will be the potential of a third-tier consisting of Artificial Intelligence (AI)
- Questions abound about the tiers and the (shocking) chance of collapsing back into one tier
Are two heads better than one?
What about three heads, are they even better still?
A rather fractious debate is taking place these days about the practice of law, and it involves a potential splintering of who or what can partake in proffering bona fide legal advice. Right now, it can be relatively successfully argued that there is really just one head, a solitary and tightly controlled possession, as it were, and meanwhile, some are advocating for a second head, while few are of the realization that a (surprising) third one is soon emerging too.
That might all seem somewhat mysterious, so let’s unpack the matter.
There is an ongoing and intense debate about whether non-lawyers might potentially be permitted to practice law. Arguments are made that doing so would presumably increase access to justice and spur a justice-for-all aspiration, while fervent counter-arguments are made that the public would be subjected to a lesser capacity of legal representation and consequently experience a palpably diminished version of justice.
If non-lawyers were widely enabled and licensed to directly perform legal services and provide legal advice, it is said that a two-tiered approach to our entire means of justice would inexorably and inevitably arise, cleaving our courts and our judicial matters. There would ostensibly emerge a two-tiered version of our legal world, one represented by lawyers and the other being represented by non-lawyers, hewing into unequal halves the entire sense of adjudication and how our laws are applied.
I’m not going to wade per se into that voracious and acrimonious dispute, but, meanwhile, proffer that the two-tiered vision could actually become a three-tiered legal world. This is a surprising notion for many and for which few are giving any focused attention; albeit, rightfully so, instead of aiming their attention at the nearer term reality of a two-tier cleaving and less concerned or even cognizant about a potential futuristic third tier.
The Three Tiers Unveiled
What is the postulated third tier?
Some assert that the advent of Artificial Intelligence (AI) as a form of autonomous legal reasoning could be considered another layer or tier in our approach to justice.
In short, three options might emerge:
· Tier 1: Representation by a conventionally licensed attorney
· Tier 2: Representation by non-lawyer (a new type of licensing)
· Tier 3: Representation by AI legal reasoning (a new type of licensing)
This third rail, embodying advanced automation that verges onto the practice of law, already has been a focus of discussion and debate for many years. Notably, this arose precipitously due to the emergence of Internet-accessible online services such as LegalZoom and other such providers.
At first, making available static fill-in forms online that were legally oriented was not especially controversial, but this becomes a more pronounced controversy once the static became the dynamic, consisting of computer programs guiding how to fill in the forms and professing how to make use of them. The accepted custom of publishing legal forms and books containing legal artifacts became outstretched. Now, in more modern times, an active and proactive computer program was suddenly and seemingly dispensing a variant of “legal advice” (depending upon the definition of legal advice that one chooses to use).
As an aside, intense debates and unresolved disputes about the foundational meaning of “legal advice” remain open-ended and at issue. In that sense, it is an additional debate embedded within the debate about the licensing of lawyers versus non-lawyers. There have been formalized attempts to definitively stipulate item-by-item what “legal advice” distinctly consists of, while others are apt to contend that legal advice is simply that which licensed attorneys to do in the course of their legal efforts. This latter way of defining “legal advice” is said by some to be circular and self-serving, since it would seem to enforce that by-definition alone, the only possible tier for the practice of law is ergo exclusively that of duly licensed attorneys.
For more about the topic of the Authorized Practice of Law (APL) and AI, see my research paper at this link here: Authorized and Unauthorized Practices of Law: The Role of Autonomous Levels of AI Legal Reasoning (https://orcid.org/0000-0003-3081-1819).
The New Third Tier Handwringing
One viewpoint on these matters is that any substantive attempts to keep at bay the third tier will be fruitless and futile.
Here’s the logic for this belief.
As AI gets more proficient at legal reasoning, such AI capabilities are going to be made available online, everywhere, and from anywhere. Thus, suppose that the United States legal establishment and government opt to ignore or otherwise cast aside the possible use of AI for providing legal advice, there are going to be those outside the purview of the U.S. that will undoubtedly make available such online services anyway. The allure of providing AI-powered legal services to make a buck will be immensely attractive and will spring forth like a vast field of blossoming tulips and daisies.
Presumably, U.S. citizens will be tempted to rely upon this “other world” online array of AI-powered legal advisory systems. Although those AI systems might be considered as outcasts or undesirables by those within the U.S. legal profession, it would seem that the public is undoubtedly going to flow toward the ease-of-use and potentially less-costly means of getting legal advice than resorting to human lawyers.
There is another stoking part of the contention that further bolsters this third-tier sustenance.
It would seem likely that lawyers themselves might also leverage those AI-powered legal reasoning capabilities, doing so to get a “second opinion” or readily get a double-check of their legal labors. If the lawyers are doing so, it would add encouragement to the makers of the AI-powered legal reasoning systems and therefore further fuel the expansion of those AI systems. In that sense, the legal profession itself will ironically spur the very thing that apparently is being sought to be closed down or excommunicated.
And, piling more kindling onto that fire, the pronouncements to have non-lawyers be allowed to practice law will be strengthened by those AI-powered legal reasoning systems. Non-lawyers can assert that they can proficiently practice law due to utilizing the AI-powered legal reasoning systems acting as an over-the-shoulder guide and legal mentor to them in their nascent legal toils.
There is a bit of a vicious cycle involved.
The better the AI becomes at legal reasoning, the more pressure brought to existing lawyers to leverage those capabilities, and the added pressure by non-lawyers to be permitted to practice law via their leveraging those capabilities too.
You could say that the third tier will boost the legitimacy and establishment of the second tier. In that case, the three-tier structure is overall reinforced and inspired toward formulation.
Ultimately, though, it could be that the “middle man” or “middle woman” is cut out of the picture entirely, such that neither a human lawyer and nor a human non-lawyer will be needed, reducing the three tiers back down to one-tier. That one tier would be the exclusive realm of the AI-powered legal reasoning systems. The revelation is that the third tier aided and abetted the formation of the second tier, and then eventually ate both of those two tiers (as in the assertion that software eats the world).
For existing lawyers, this last point of a collapsed one-tier consisting solely of AI legal reasoning systems is exceedingly farfetched since it is highly unlikely that within their lifetimes such AI capabilities will be borne out. Meanwhile, newbie students just now entering into law schools are perhaps somewhat prone to later on feeling some of this effervescence, but even they are unlikely to be around when AI gets to that veritable pinnacle (some would argue that it won’t ever do so).
Do not though interpret these prognostic remarks as indicating that it is okay to put one’s head-in-the-sand and hide from the progressive advances of AI for legal reasoning. That would most certainly be a mistake. Keep in mind that there is going to be a gradual advancement of AI legal reasoning and this will subtly and incessantly bear upon the debate about the lawyers versus non-lawyers’ two-tiered world. As such, thinking about a proposed third tier, admittedly perhaps somewhat early on in its evolution, nonetheless provides important insights and is substantively worthwhile to contemplate.
We of course shouldn’t get ahead of ourselves, yet nor do we want to be falling behind and get caught asleep at the legal wheel.
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Additional writings by Dr. Lance Eliot:
- For Dr. Eliot’s books, see: https://www.amazon.com/author/lanceeliot
- For his Forbes column, see: https://forbes.com/sites/lanceeliot/
- For his AI Trends column, see: www.aitrends.com/ai-insider/
- For his Medium column, see: https://lance-eliot.medium.com/
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